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Edmundson v. Board of Review

Decided: December 15, 1961.

JAMES T. EDMUNDSON, CLAIMANT-APPELLANT,
v.
BOARD OF REVIEW, DIVISION OF EMPLOYMENT SECURITY, DEPARTMENT OF LABOR AND INDUSTRY, STATE OF NEW JERSEY, RESPONDENT



Conford, Freund and Labrecque. The opinion of the court was delivered by Labrecque, J.s.c. (temporarily assigned).

Labrecque

Claimant-appellant, James T. Edmundson, appeals from a decision of the Board of Review, Division of Employment Security, affirming the decision of the Appeal Tribunal holding him ineligible for unemployment benefits from January 16, 1961 through February 19, 1961.

Edmundson had been employed as a porter by Tepper's Department Store, Plainfield, N.J., for approximately two years prior to the time in question. He had been working full-time, from 8:30 P.M. to 6:00 A.M., until November 12, 1960, when he became separated. Following the termination of his employment, he testified he desired to enroll in the spring term at Rutgers with the hope of attending afternoon classes. However, he did not enter Rutgers, nor did he register or file an application to enter. He had not attended Rutgers during the two years he was employed at Tepper's.

During the entire period for which he was held ineligible for benefits he restricted his availability for work to part-time work, i.e. , from 8:30 A.M. to 12:00 noon, or from 9:00 A.M. to 1:00 P.M. Since he was not attending school, he tried to keep busy around the house. At the time he filed his claim for unemployment benefits he certified that he was ready, willing and able to work full-time and that he was seeking full-time work. However, in his claim interview he conceded that he was available for part-time work only. Based upon this the deputy made a determination that, as of January 16, 1961, he was ineligible for benefits by reason of the restriction of his availability to part-time work although he had been last employed on a full-time basis. On February 1, 1961 the Division affirmed this determination.

On appeal from the Division's determination, the Appeal Tribunal held a hearing and determined that since he had no part-time work during his base year, N.J.S.A. 43:21-20.1, dealing with the eligibility of part-time workers

for benefits, did not apply and the limitation placed by him upon his availability for work made him ineligible for benefits. The Board of Review affirmed this decision.

We call attention to the fact that the brief of the claimant is violative of the rules in many respects. While these deficiencies may be overlooked as claimant is a layman, the brief was in no way addressed to the legal question on which determination of the case depends. We are indebted to counsel for the respondent for having presented fairly and concisely both the question involved and the factual situation on which its resolution depends.

On the undisputed testimony before the Bureau, the only issue fairly presented is whether availability for work, within the meaning of N.J.S.A. 43:21-4(c), extends to availability restricted to part-time work when the individual in question had previously been employed full-time through the date of involuntary separation from his prior employment. No decision of our courts directly passing upon the point has been submitted by either side.

N.J.S.A. 43:21-4 provides that:

"An unemployed individual shall be eligible to receive benefits with respect to any week only if it appears that:

(c) He is able to work, is available for work, and has demonstrated that he is actively seeking work, * * *."

In Krauss v. A. & M. Karagheusian, Inc. , 13 N.J. 447, 457-458 (1953), the court stated that in determining whether claimant is entitled to benefits the "available for work" test under subsection 4(c) is of first importance. The availability requirement is a test to discover whether the claimant would, in actuality, be working during the benefit period, were it not for his inability to obtain work that is appropriate for him. The test is met where the individual is ready, willing and able to accept suitable work which he does not have good ...


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